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The Supreme Court of India is currently deliberating on the constitutional validity of the Waqf (Amendment) Act, 2025, a piece of legislation that has sparked significant debate and legal challenges. The core of the controversy revolves around the nature of Waqf properties, their dedication to God, and the extent to which the government can regulate and even denotify such properties. Senior advocate Kapil Sibal, representing the petitioners challenging the amended law, has argued vehemently that Waqf is a dedication to God, akin to the concept of Moksha in Hinduism, and therefore, once given, it cannot be taken back. This argument underscores the religious and deeply entrenched nature of Waqf within Islamic tradition. The Chief Justice of India (CJI) BR Gavai acknowledged the similarity of such provisions across various religions, but Sibal emphasized the unique aspect of Waqf being a direct dedication to God, unlike charity given to a community. This distinction is crucial in understanding the petitioners' argument that the amended law infringes upon fundamental religious freedoms.
The Waqf (Amendment) Act, 2025 introduces provisions that grant the government, specifically the district collector, the power to inquire into and determine whether a property declared as Waqf is actually government land. This provision is one of the major points of contention, with petitioners arguing that it allows for a non-judicial process to effectively seize Waqf properties. The amended law also faces challenges regarding the composition of state Waqf boards and the Central Waqf Council, with petitioners asserting that only Muslims should be members, excluding ex-officio representatives. These challenges highlight concerns about the independence and autonomy of Waqf institutions, and the potential for government interference in their management. The Supreme Court has identified three core issues raised by the petitioners: the denotification clause, the composition of Waqf boards, and the provision allowing district collectors to determine the status of Waqf properties.
Solicitor General Tushar Mehta, representing the Centre, has defended the legislation, arguing that Waqf is inherently a secular concept and enjoys a presumption of constitutionality. The Centre maintains that while Waqf originates from Islamic practices, it is not an essential religious practice of Islam, thereby justifying government regulation. Mehta also highlighted a clause that excludes tribal land from being declared Waqf, arguing that Scheduled Tribes are a constitutionally protected class and the law respects that protection. This provision was cited as an example of the law's sensitivity to cultural and social contexts. However, the bench questioned whether a religious identity could override cultural protections, particularly if Waqf properties are created on tribal lands. This query touches upon the complex intersection of religious freedom, cultural preservation, and land rights.
Mehta further defended the provision requiring a person to have practiced Islam for at least five years before creating a Waqf, stating that it was aimed at preventing fraudulent declarations. He argued that non-Muslims already have existing legal routes to create charitable institutions and questioned why they would need to use Waqf. This argument attempts to address concerns about potential misuse of the Waqf system. Senior advocate Rakesh Dwivedi, appearing for the Rajasthan government, supported the Centre, stating that the concept of Waqf by user was not grounded in Islamic law but rather derived from legal principles such as adverse possession after Independence. This perspective challenges the historical and religious basis of Waqf by user, further fueling the debate about its legitimacy and the government's authority to regulate it.
In his rejoinder, Sibal argued that the amended law is "ex facie arbitrary, irreversible, and expropriatory." He criticized Section 3C of the Act, which he said deprives Muslims of their rights even before any determination is made regarding whether a property is government land or Waqf. Sibal questioned the procedural fairness of this provision, arguing that there is no law laid down in the statute as to how such determination will take place. This criticism underscores the petitioners' concerns about due process and the potential for abuse of power. Dhavan argued that the Centre, through this law, “liquidated the concept of Waqf.” He contended that the law infringes on both individual and institutional religious freedoms under Articles 25 and 26 of the Constitution. Dhavan's argument highlights the broader implications of the amended law for religious freedom in India.
The debate surrounding the Waqf (Amendment) Act, 2025 raises fundamental questions about the relationship between religion, law, and governance in a secular democracy. The Act's provisions regarding denotification of Waqf properties, composition of Waqf boards, and the role of district collectors have sparked concerns about government interference in religious affairs and the erosion of religious freedoms. The arguments presented by both sides in the Supreme Court reflect deeply held beliefs about the nature of Waqf, its historical significance, and its place in Indian society. The court's decision will have far-reaching consequences for the management of Waqf properties, the rights of Muslims, and the balance between religious freedom and government regulation in India. The key arguments advanced by Sibal centered around the irrevocable nature of waqf, drawing an analogy to moksha, emphasizing the dedication to God as a core tenet. The opposing arguments, led by Mehta, framed waqf as a secular concept rooted in legal principles, thereby justifying governmental oversight and intervention. This dichotomy forms the crux of the legal battle, pitting religious autonomy against state regulation. Furthermore, the implications extend beyond mere property rights; they delve into the heart of constitutional guarantees of religious freedom, the interpretation of secularism within the Indian context, and the safeguarding of minority rights. The upcoming verdict from the Supreme Court is thus poised to reshape the landscape of waqf management and religious jurisprudence in India. The core of the debate also touches upon the definition of 'essential religious practices' and whether waqf falls under that ambit. The government argues that it does not, enabling them to regulate it, whereas the petitioners assert that waqf is intricately linked to Islamic religious beliefs and practices. This difference in perspective further complicates the issue and underscores the diverse interpretations of religious practices within the legal framework. In addition, the financial implications of waqf properties cannot be overlooked. These properties often generate significant income, which is used for charitable purposes and community development. Any changes to the management or ownership of these properties could have a substantial impact on the beneficiaries and the communities they serve. Therefore, the Supreme Court's decision will not only have legal ramifications but also social and economic consequences.
The historical context of Waqf properties also plays a crucial role in understanding the current dispute. Many Waqf properties were established centuries ago, often through donations from wealthy individuals or rulers. These properties have since become an integral part of the religious and cultural heritage of Muslim communities in India. The government's attempt to regulate or denotify these properties is seen by some as a threat to this heritage and a disregard for the historical significance of Waqf institutions. Moreover, the issue of representation on Waqf boards is closely tied to the question of minority rights. Petitioners argue that only Muslims should be members of these boards to ensure that the interests of the Muslim community are adequately protected. The government's attempt to include ex-officio representatives is seen as an attempt to dilute the Muslim character of these boards and to undermine the autonomy of the Muslim community in managing its own affairs. The Supreme Court's decision will therefore have a significant impact on the representation of minorities in religious institutions and the protection of their rights. The legal arguments also revolve around the interpretation of constitutional provisions relating to religious freedom and property rights. Petitioners argue that the amended law violates Articles 25 and 26 of the Constitution, which guarantee the right to freedom of religion and the right to manage religious affairs. The government, on the other hand, argues that its actions are justified under Article 300A of the Constitution, which allows the state to regulate property rights in the public interest. The Supreme Court's decision will clarify the scope and limits of these constitutional provisions and provide guidance on the balance between religious freedom and state regulation. In conclusion, the case surrounding the Waqf (Amendment) Act, 2025 is not just a legal battle over property rights; it is a complex and multifaceted issue with significant implications for religious freedom, minority rights, and the relationship between religion and state in India. The Supreme Court's decision will have far-reaching consequences for the Muslim community, the management of Waqf properties, and the interpretation of constitutional principles in a secular democracy. The upcoming verdict will serve as a landmark judgment that will shape the future of waqf administration and religious freedom jurisprudence in India for years to come.
Source: 'Like Moksha in Hinduism': CJI on Kapil Sibal's 'waqf dedication to god' argument